Wednesday, April 7, 2010

Shot Down: Morley vs. CIA

by DALE K. MYERS

Last week’s ruling by United States District Judge Richard J. Leon didn’t come as a big surprise to anyone watching from the sidelines.

Judge Leon ruled in favor of the CIA in a long running dispute between the intelligence agency and journalist Jefferson Morley who’s been seeking access to agency records that might shed some light on whether there was a relationship between deceased agent George E. Joannides and accused presidential assassin Lee Harvey Oswald.

In July 2003, Morley submitted a Freedom of Information Act request to the CIA seeking all records pertaining to CIA operations officer George E. Joannides including but not limited to seventeen specific categories of records. Morley believed that Joannides was “uniquely well-positioned to observe and report” on the assassination of President Kennedy and that the documents he requested promised “to shed light on the confused investigatory aftermath of the assassination.”

The CIA initially responded to Morley’s request by telling him that records relating to the assassination had been transferred to the National Archives and that he should direct his FOIPA request there. After further review, however, the CIA reconsidered its position and in 2004 sent Morley three complete documents, two documents in segregable form, and 113 redacted documents. Some material was withheld in its entirety and the CIA declined to confirm or deny the existence of other records requested by Morley.

Because the CIA had conducted an adequate search, sufficiently explained any withheld information, and properly invoked the FOIPA exemptions it claimed, the Court granted summary judgment in the agency’s favor.

On review, however, the Circuit Court of Appeals affirmed the decision in part and reversed in part. Specifically, the Court of Appeals ordered the CIA to (1) search its operational files (which it had not done previously), (2) search records it transferred to the National Archives, (3) supplement its explanation regarding missing monthly reports Morley believed should have been filed by Joannides, (4) provide details as to the scope of its previous searches, (5) explain to the Court’s satisfaction why entirely withheld information was not segregable, (6) substantiate its refusal to confirm or deny the existence of certain records requested by Morley, and (7) provide additional justification for withholding some documents under FOIPA exemptions.

In response to this ruling, the CIA conducted additional searches resulting in the release of 113 responsive records in April 2008 and another 293 records in August 2008.

Subsequent to the new releases, the CIA renewed its motion for summary judgment on the basis that it fully complied with the Court of Appeal’s remand. Morley opposed the motion and filed a cross-motion for summary judgment.

In his ruling, Judge Leon explained that the additional searches conducted by the CIA of its operational files in 2008 satisfied the Court of Appeal’s 2004 remand and that the CIA had also now explained in sufficient detail how it crafted its search of the three locations which comprise the statutory definition of the agency’s operational files.

“Not surprisingly,” Judge Leon wrote, “Morley is unhappy with the scope of the CIA’s search. But to the extent Morley takes issue with the CIA’s decision not to apply these search terms to any other agency directorates, his argument must fail because it neglects the explicit statutory definition of ‘operational files,’ which is limited to the three directorates searched by the CIA.”

Because the CIA had described the search of its operational files with more than relative detail, in good faith, and in a nonconclusory way, summary judgment in its favor was deemed appropriate on that point.

Additionally, the 2004 Court of Appeals was not satisfied with the CIA’s explanation concerning the whereabouts of 17 monthly reports which Morley believes Joannides filed between 1962 and 1964.

“Regrettably,” Judge Leon wrote in his ruling, “Morley has read the Court of Appeals’ opinion as a broad invitation to once again mount his argument as to why these reports must have been filed in the first place, why they should now be considered ‘missing,’ and why their absence indicates an inadequate search on the part of the CIA. He is mistaken. It was not an accident that the Court of Appeals began its discussion of the monthly reports by stating, ‘Morley is less persuasive in contending that the search was inadequate because there are certain documents that he suspects the CIA has in its possession but withheld.’ “

The actual reason the Court of Appeals remanded on this point was that the CIA failed to explain to the Court, or Morley, its search for these reports and its resulting belief that they never existed. Instead, the CIA had merely pointed to a memorandum it previously wrote to the National Archives which the agency claimed ‘may’ explain why the reports did not exist. While the CIA continues to point to the National Archives memorandum, it now details on the record its new search efforts to uncover the monthly reports.

“Morley’s continued disbelief in the agency’s explanation,” Judge Leon wrote, “is not enough to create a material issue of fact on this point. He offers ‘nothing more than mere speculation that as yet uncovered documents might exist,’ which is not enough to ‘undermine the determination that the agency conducted an adequate search for the requested records.’ “

According to Judge Leon, Morley’s primary objection to the general scope of the CIA’s search appears to be that it neglected to use two search terms which Morley feels are particularly significant. Specifically, Morley contends that Joannides was involved in two covert operations identified by the cryptonyms AMBARB and AHMINT, and he argues that the CIA’s search is inadequate to the extent it did not explicitly search for these files.

However, Judge Leon ruled that Morley’s objection was unavailing because the CIA had explained how it searched for all records relating to Joannides and that the presence or absence of the search terms AMBARB and AHMINT does not impact the Court’s finding that the CIA conducted an adequate search.

In additional to ruling that the CIA had provided adequate explanations for exempting information under the law, Judge Leon also ruled that the CIA has offered a sufficiently detailed explanation, as required by the 2004 Court of Appeals, as to why disclosing the existence of some records relating to Joannides might endanger intelligence sources and methods.

According to Delores M. Nelson, Chief of the Public Information Programs Division at the CIA, intelligence activities lie at the core of the CIA’s functions. If the CIA admits it possesses records regarding the CIA’s participation in a covert action, they believe this disclosure could reasonably be expected to result in damage to the United States’ foreign relations with those countries in which the covert actions occurred. They also believe that even the denial of the existence of records with respect to Joannides’s covert operations could have similarly deleterious effects.

Thus, the CIA continues to neither confirm nor deny the existence of all records relating to Joannides’s covert operations, except for those relating to two covert projects which the CIA has already publicly acknowledged: one, referred to by the cryptonym JMWAVE, and the second, service as a CIA representative to the House of Representatives Select Committee on Assassinations from 1978 to 1979.

Judge Leon wrote, “Morley, nonetheless, objects to the scope of the CIA’s Glomar response because he believes the agency has already declassified records which document Joannides’s involvement in the covert AMBARB and AHMINT operations. Based on this belief, he contends that the CIA cannot continue to confirm or deny their existence. I disagree. The CIA denies it ever officially declassified or acknowledged Joannides’s participation in these operations. And notwithstanding Morley’s allegations to the contrary, he fails to point to relevant portions of any document officially recognizing Joannides’s participation in these operations.”

Thus, Judge Leon ruled in favor of the CIA granting them summary judgment.

Needless to say, Morley and attorney James Lesar disagree with Judge Leon’s ruling claiming that Judge Leon is factually wrong about Joannides and the AMBARB and AMHINT operations and that his summary ruling was improper. They hint at yet more appeals.

From where I sit, the whole six-and-one-half-year affair looks like a big fishing expedition gone bad.

While it’s easy to imagine that there might have been a connection between one of the covert operations run by George Joannides and Oswald given their focus on all things Castro, we have yet to see one shred of believable evidence offered by Morley or anyone else that there actually was a connection, let alone a connection that significantly alters what we know of Oswald’s deed in Dealey Plaza.

4 comments:

You seem cheefully content that the CIA is withholding files on George Joannides that could shed light on the JFK murder, especially the DRE-Joannides relationship, the DRE's confrontations with Oswald, and what the CIA knew about Oswald and when they knew it.

Wouldn't you rather see the files and judge their validity for yourself? I'm surprised you don't appear to support their release, as a reasoned investigator. You are aware of course that Bugliosi, Posner, Mailer, Judge Tunheim, and a host of other do, whatever their ultimate beliefs in this case are.

Don't you think it's odd that all monthly DRE reports during Joannides' 1962-64 tenure as their case officer are either missing, hidden, destroyed, or even never properly filed, especially when we know that monthly reports were routinely filed by the DRE's case officers before and after Joannides?

Shouldn't we be concerned when the CIA admits (over 30 years later) that Joannides service as a Congressional liason was considered by the CIA as a "covert project" wherein he served the Agency "undercover" - before Congress? He used his actual name to HSCA investigators - so how exactly was he undercover? How is providing full disclosure of records to Congress considered a "covert project"?

It's real simple, Steve. Morley went on a fishing expedition and came up empty handed. It's not the first time it's been tried. I reported what happened in the court tussle and noted that, "While it’s easy to imagine that there might have been a connection between one of the covert operations run by George Joannides and Oswald given their focus on all things Castro, we have yet to see one shred of believable evidence offered by Morley or anyone else that there actually was a connection, let alone a connection that significantly alters what we know of Oswald’s deed in Dealey Plaza." It's all about the truth, Steve. It's not about tales of conspiracy, fishing expeditions gone bad, or - god forbid - how I feel about it all. Wake me when you've got something.

I'm not disagreeing that you accurately covered the court's decision, or that Judge Leon made a legally permissible ruling in the case. And I do appreciate your website's coverage of these rather obscure matters.

However, you use the term "fishing expedition" pejoratively here & in other articles about this case, as if the attempt to force the disclosure of records about a CIA controlled group directly connected to Oswald is a waste of time.

Your reasoning seems to be: He fished, he caught nothing, so there are no fish in these waters.

Your logic is trying, at best.

By your reasoning, it seems, clues to hidden government records should not become the subject of a citizen's FOIA or JFK Act court requests, because, well, the records are hidden & the clues alone don't prove the records are relevant, thus, why try to secure their release?

However, when you fish, what you see is on the surface, & the measure of the pond's depth, & what it contains, can be deceiving.

Jeff Morley has caught a few fish from the Langley pond, whether you accept it or not.

Recall that the CIA told the ARRB that no officer controlled the DRE in 1962 to 1964, because they had no interest in the DRE then. At the time, did you buy this rotted bait, hook, line, & sinker? Good thing the ARRB & Morley didn't, for later we learn DRE activity peaked in this period, & Dick Helms personally assigned George Joannides to the DRE task. I suppose the CIA just goofed in portraying otherwise to the arm of the President's JFK Act?

Your answer avoids confronting the reasonably disturbing questions about the CIA's obstinance when it comes to Joannides: his missing DRE reports, & his "undercover" "covert project" in representing the CIA before a Congressional committee.

You also mis-phrase the issue: It's not about the need to connect "one of the covert operations run by George Joannides and Oswald", for which you assert that not a "shred of believable evidence" exists.

That connection has already happened. Did you forget that the CIA payments to the DRE for political action & propaganda fell under the Joannides-run covert operation codenamed AMSPELL? And that AMSPELL clashed with Oswald in New Orleans in the street & on the radio, advancing both the DRE & AMSPELL goal of countering pro-Cuba activity - here, Oswald's FPCC - in a stroke?

I suppose to you that this does not constitute a connection, direct or indirect, between a Joannides run covert DRE operation & Oswald, because there is no CIA DRE report for that month in August 1963 stating so.

As you did, let me make my points simple.

First, CIA protocol was to report DRE activity, detailed & monthly, & the only DRE reports missing occur in the period they crossed Oswald & were corralled by Joannides. Here, you stand alone among researchers of every spectrum in not finding this problematic.

Second, the CIA's response to a Congressional mandate for disclosure of records to the HSCA was to initiate a covert action headed by an undercover officer - Joannides - tasked with, on the surface, being helpful to the HSCA. What did his undercover covert project with the HSCA consist of, especially when we know that he both concealed his role in 1963, & was not helpful to investigators in securing requested records?

What are the benign answers to these questions?

I agree it is all about the truth, no matter what that is. But these truths are locked in a vault.

The true historical record of the DRE, Oswald, & what the CIA knew about the two, & when they knew it, has gaping holes in it. Filling those holes is a worthy pursuit.

The CIA's history of obsfucation on the DRE & Joannides demonstrates that here, the record of the truth is not so simple, Dale.

Another go-around, Steve? You write: "Your reasoning seems to be: He fished, he caught nothing, so there are no fish in these waters."

Wrong. He fished, he caught nothing - if he or anyone else ever does, let me know. What is so hard to grasp?

You - like a lot of conspiracy theorists - insist on offering speculative "answers" (at best) to questions that cannot be answered given the current available record. This seems rather reckless to me.

Case in point, your response draws numerous inferences and connections that are supported only by your own speculation regarding a fragmentary record. This may seem like a wall of irrefutable truth to you, but I've been at this long enough (including my own FOIPA requests thirty years ago into the anti-Castro Cuban exile movement and its connections to Oswald)to know that there are many possible explanations for the events in this instance and only one that has meaning to the Oswald case.

The way I see it, that connection hasn't been made - yet. Will it be? I don't know. You seem to think it's already been done. You're obviously wrong on that score or we wouldn't be having this exchange.

You also seem to think you know how I feel about efforts (past and present) to uncover the truth about Oswald, the DRE, the CIA war against Castro, and all the rest. How absurd. But then, putting words into the mouths of others and offering endless speculation to make the case for conspiracy is typical of the conspiracy crowd, isn't it?

Finally, the conspiracy crowd loves to point to the CIA's locked closet and claim that the fact that the closet is locked at all is "evidence" of the grand conspiracy against Oswald. This is absurd on many intellectual levels.

Let me simply suggest that speculation and innuendo have no place in any worthy pursuit where truth is the objective.